In 2014, the Maryland General Assembly decriminalized the possession of less than ten grams of marijuana. See Robinson v. State, 152 A.3d 661, 673 (Md. 2017). Possession of less than ten grams of marijuana is now a “civil offense” under Maryland law and results in the issuance of a civil citation and a fine. Id. The decriminalization of marijuana in Maryland has brought to light the issue of an illegal search and seizure solely based on the odor of marijuana. See id. The Fourth Amendment protects the people’s right against unreasonable searches and seizures. State v. Johnson, 183 A.3d 119, 128 (Md. 2018). In 2019, the Maryland Court of Appeals began its opinion with the title of Bob Dylan’s song “The Times They Are a–Changin’[,]” subsequently holding that the mere odor of marijuana is not enough to give police officers probable cause to search and arrest a person. Pacheco v. State, 214 A.3d 505, 508, 518 (Md. 2019).
I. Michael Pacheco v. State of Maryland
Around 10:00 p.m. on May 26, 2016, Officers Groger and Heffley of the Montgomery County Police Department were conducting a routine foot patrol in Wheaton, Maryland. Id. at 508. The officers noticed a “‘suspicious vehicle” parked behind a laundromat “in a dark parking spot . . . with the windows down . . . and nowhere near the business itself.’” Id. The officers found it suspicious for someone to sit in their car instead of utilizing an open laundromat; as it had free Wi-Fi and available televisions. Id. The officers approached the vehicle from opposite sides and later testified that they both smelled the “strong” odor of “fresh burnt” marijuana. Id. at 508–09. The officers found Pacheco alone, sitting in the driver’s seat of his vehicle. Id. at 509. Officer Heffley identified and seized a marijuana “joint” that was sitting in the center console. Id. At trial, Officer Heffley testified that he knew the marijuana in the joint would be less than ten grams. Id. The officers asked Pacheco to step out of the vehicle and conducted a search of his body that revealed cocaine in his “left front pocket.” Id. The officers proceeded to search the vehicle, which led to the recovery of a marijuana stem and two packets of rolling papers. Id. “The officers transported Mr. Pacheco to the police station.” Id. Once there, the officers “issued him a citation for possessing less than ten grams of marijuana and charged him with possession of cocaine with intent to distribute.” Id.
Pacheco moved to suppress the cocaine that was discovered during an illegal search of his person, contending that the officers lacked probable cause to believe that he possessed more than ten grams of marijuana. Id. The State countered that the strong odor of marijuana provided the officers with probable cause to search the vehicle and Pacheco’s person. Id. The Circuit Court of Montgomery County denied Pacheco’s motion to suppress the cocaine, holding that the possession of less than ten grams of marijuana provided the officers with probable cause to arrest Pacheco and conduct a search of his person. Id. The Court of Special Appeals upheld the search of Pacheco’s person, finding that Pacheco was the sole occupant of a vehicle that was emitting a strong odor of marijuana and a marijuana joint was sitting in plain view of the officers. Id. The Court of Special Appeals relied heavily on pre-decriminalization case law in making its decision. Id.
II. Governing Law
Case law demonstrates that there are exceptions to the protection from unreasonable searches and seizures established under the Fourth Amendment; notably the “automobile exception” identified in Carroll v. United States, 267 U.S. 132 (1925) and the search incident to arrest exception created in Chimel v. California, 395 U.S. 752 (1969). Pacheco, 214 A.3d at 511. Carroll authorizes the warrantless search of a vehicle if the police have “probable cause to believe the vehicle contains contraband or evidence of a crime.” Id. (quoting State v. Johnson, 183 A.3d 119, 128 (Md. 2018)). In regard to the search of a vehicle, “there is no distinction between the significance of a criminal amount of marijuana versus the significance of a non-criminal—but still illegal—amount of marijuana.” Robinson, 152 A.3d at 683. Pacheco did not argue the search of his vehicle was unlawful, as there was evidence of marijuana sitting in the center console. Pacheco, 214 A.3d at 516.
The search incident to arrest exception authorizes the warrantless search of a person if the police have probable cause to believe that the person subject to arrest has committed a felony or is committing a felony or misdemeanor in the presence of police. See Maryland v. Pringle, 540 U.S. 366, 369–70 (2003). For the search conducted on Pacheco’s person to be considered lawful, the officers must have possessed probable cause to believe that Pacheco was committing a felony or a misdemeanor in their presence. Pacheco, 214 A.3d at 516. The officers’ observation of Pacheco’s “suspicious,” legally parked vehicle, the odor of “fresh burnt” marijuana, and the joint in the center console did not meet the standard for probable cause—the belief that a felony was committed or in commission—to arrest and search Pacheco’s person. Id. at 517.
The post-decriminalization era has brought new questions and with this recent Court of Appeals decision, new answers in the State of Maryland. See Maryland Court Rules Pot Smell Not Enough to Search Person, AP News (Aug. 15, 2019), https://www.apnews.com/17b03c3319b44262b41c67dbf28f6ec6. The recent 7–0 decision does not change the standard for probable cause required to search a vehicle, but law enforcement can no longer search a person without evidence of a criminal offense—which less than ten grams of marijuana is no longer considered to be. Id. However, the concurrence discusses a growing concern for public safety regarding the offense of driving under the influence of marijuana, as marijuana-impaired driving accidents have risen by nearly 40%. Pacheco, 214 A.3d at 518–19 (citing Neal Augenstein, Marijuana-Impaired Driving Spikes in Maryland, Police Say, Wtop (February 19, 2019), http://perma.cc/EXR8-N5QX). The concurring judges made a point to note that this decision was properly reached pertaining to the specific circumstances in this case only, and should not preclude an officer’s decision to arrest when the officer believes that an occupant in a vehicle has been driving impaired. Id. at 520. The sole fact that a vehicle is not in motion when approached by law enforcement is not determinative, as there are other factors to consider:
1) whether or not the vehicle’s engine is running, or the ignition on; 2) where and in what position the person is found in the vehicle; 3) whether the person is awake or asleep; 4) where the vehicle’s ignition key is located; 5) whether the vehicle’s headlights are on; [and] 6) whether the vehicle is located in the roadway or is legally parked.
Atkinson v. State, 627 A.2d 1019, 1027 (Md. 1993).
In the future, there may be a need to redefine these factors to a more “marijuana-based” impairment, but the Court of Appeals does not touch on this offense in the current opinion. See Pacheco, 214 A.3d at 517. As Chief Judge Barbera quoted in her opinion, “[t]he times they are a-changin’[,]” and the Maryland Court of Appeals is acknowledging the need for new standards as the use of marijuana is becoming more prevalent throughout our society. Id. at 508.
*Madison Buchness is a second-year law student at the University of Baltimore, where she serves as a Staff Editor for Law Review and as a member of the Royal Graham Shannonhouse III Honor Society. Madison is also a member of the National Trial Competition Team, the Honor Board, and the Community Service Director for the Student Bar Association. This past summer, Madison worked as a judicial intern for the Hon. Kevin J. Mahoney in the Circuit Court for Harford County and as a law clerk for the Law Office of John C.M. Angelos.